U.S. Congressional Panel to Probe Court Secrecy

By Reuters

Sept. 9, 2019

SAN FRANCISCO — A U.S. House of Representatives subcommittee will hear testimony this month about a lack of transparency in the federal courts, with a focus on judges who routinely keep important evidence secret at the public's expense.

The hearing comes after a June 25 Reuters investigation (Read the Special Report https://www.reuters.com/investigates/special-report/usa-courts-secrecy-judges ) detailed how judges have allowed the makers of dozens of consumer products to file under seal in their courts information that is pertinent to public health and safety. As a result, hundreds of thousands of Americans have been killed or seriously injured by allegedly defective products -- drugs, cars, medical devices and other products -- while evidence that could have alerted consumers and regulators to potential danger remained hidden by the courts.

Representative Hank Johnson, a Democrat on the House Judiciary Committee, told Reuters in an interview Monday that court secrecy is a "life and death" issue, and that it causes people to lose confidence in the justice system.

It is rare for any party in a lawsuit to push for transparency. Corporations are loath to expose embarrassing internal communications, plaintiffs' lawyers don’t want to delay resolution for their clients, and judges want to keep cases moving on a crowded docket.

"Every judge should be aware that it's not just the parties that are litigating, but there is a public interest involved -- even if the only interest is the appearance that justice is taking place," said Johnson, chairman of the Subcommittee on Courts, Intellectual Property and the Internet, which oversees the federal courts.

A spokesman for the Administrative Office of the U.S. Courts, which manages the federal court system, said: "The judiciary has great respect for Chairman Johnson and always appreciates the opportunity to engage in a dialogue with his committee."

Judges sealed evidence relevant to public health and safety in about half of the 115 biggest defective-product cases consolidated before federal judges over the past 20 years, Reuters found.

Information about the addictive nature of opioids was kept secret for years in courthouses across the United States, including nearly 2,000 cases grouped in multidistrict litigation before Judge Dan Polster in federal district court in Cleveland. An appeals court in June rebuked Polster over excessive secrecy in his court, and Polster has since allowed much more information from the case to become public.

Judges, including Polster, provided no explanation for allowing the secrecy in 85 percent of the cases where Reuters found health and safety information under seal -- despite being required to do so in most jurisdictions.

Johnson said the purpose of the congressional hearing, scheduled for Sept. 26, is to amplify the issue so judges will take action themselves to follow case law.

"If they don't, then legislation can commence," Johnson said.

(Reporting by Dan Levine in San Francisco and Lisa Girion in Los Angeles. Edited by Janet Roberts)